Iputu v Lasi [2014] SBHC 7; HCSI-CC 483 of 2006 (10 February 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CC No. 483 of 2006

BETWEEN:

ELIJAH IPUTU, MESACH TIVURU, JEREMIAH PIKO AND ALICK NGIRA
(Representing themselves and the Members of Choe Tribe)
Claimants

AND:

SAMUEL LASI
1st Defendant

AND:

NONOULU LAND-OWNING GROUP
2nd Defendant

AND:

MEGA CORPORATION LIMITED
3rd Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
4th Defendant

Date of Hearing: 27th January 2014
Date of Ruling: 10 February 2014

Mr W Rano for the Claimants
Mr J Keniapisia for the 1st and 2nd Defendants
Mr P Afeau for the 3rd Defendant
Mr R Firigeni for the 4th Defendant

RULING

FAUKONA J: A consolidation application was filed by the 1st and 2nd Defendants on 11th June 2013. Both Defendants sought seven reliefs brewed out from their application to strike out, application for setting aside or variation, and application for summary judgment.

2. Appear as a preliminary issue, Mr Rano objects to entertaining a style consolidation application because it is an abuse of process. He submits that the Rules provide for separate application with separate fees. Mr Keniapisia agrees that consolidation on separate applications is necessary for convenient reasons. Whatever fees that may have involved be dealt with by the Registrar of High Court later.

3. I would agree with Mr Rano. The process upon which each application premise is separated in nature and they arise at certain stages of the pleadings. Separate fees also attached upon filing. The concern of Mr Rano is in terms of the fees, which a single fee was paid for amalgamation of three separate applications, which are now consolidatedly heard in Court. The problem, if any, is not conceivably to abuse the process in my perception so as to form a legal basis to dismiss the applications. What may have occurred is an administrative shortfall. The High Court registry could have noted the format of the application and the contents of the consolidation. Having done so, appropriate fees could have been requested. In any event, the fee payer should also insist the staff at the counter to suggest whether certain fees are necessary for consolidation application. I must conclude that fees can be arranged but nothing could cease this application proceeded.

Application to Strike Out

4. Rule 9.71 provides if the claimant does not take steps in a proceeding that are required to ensure the proceeding continues, then the Court may strike out a proceeding appropriately in a Court hearing. "At the hearing" refers to when an application is put before the Court.

5. Mr Keniapisia submits by narrating or measuring the Rules to the facts of this case and make reference to paragraph 3 – 8 of Mr Alipitu's sworn statement filed on 4th June, 2013.

6. What transpires in those paragraphs is that in 2011, this case was adjourned several occasions because the claimant's solicitor insisted that this case depended on CC. 367 of 2010. On 30th March 2012, the Court of Appeal finally decided that the Marovo CC, on 12th October 2010, determined the question of ownership, which has not been done before a variety of judicial and other bodies in the past.

7. After 30th March, 2012 this case should have expectedly proceeded to trial. There were two mention dates in 2012 but there was no appearance by Mr C Ashley, who by then no longer practiced law. Mr Keniapisia argues the Claimants could have engage a Counsel immediately to move the case forward, and write to the Registrar on 18th July 2012, to list the case.

8. Hence there is implication by evidence that the period of which the Claimants fail to prosecute the case was between March 2012 and May 2013. Before that, it would seem acceptable because the reason for delay was CC: 367 of 2010, which finally being disposed off on 30th March 2012. On 18th July 2012, Counsel for 1st and 2nd Defendants sought mention date. On 27th September 2012, in a full Court, the same Counsel again sought that the matter be adjourned generally because of the changing circumstances, that he would file applications for Summary Judgment and Injunction. Such application was finally filed on 11th June 2013, nine months later. Henceforth on 18th July 2013 the case was called on a motion day.

9. It now seems apparent that delay after the Court of Appeal judgment was also caused by the Counsel for 1st and 2nd Defendants through his indulgence in the judicial process. I noted four months immediately after the Court of Appeal judgment, the Claimants failed to move the case forward. It would be in the best interest of justice if this application was filed 6 months immediately thereafter, utilising Rule 9.73, rather than requesting mention date.

10. Now Mr Rano maintains the same stand that this case depends on other cases. He mentioned three cases; they are CC 1 of 2012, CC. 99 of 2013 and CC 238 of 2013. I have read these cases to certain extent. I noted all the cases basically premise on the same customary land Nono/Choe customary land including boundaries as well. One can spot without any fracture of light or doubt that various issues that attracts civil litigation stems from the same land by the same parties and or their privies to it. No one from a totally different tribe would protrude and claim ownership of a land that had been litigated by the same parties for about half a century. Traditionally, it is difficult, no one dare to tip his figure into a hot soup. No doubt, there is link in all these cases. I accept Mr Rano fails to link them all but my reading affirms to me there is common link. Names of parties may differ but they originate from one of the two common tribes and none other. Mr Keniapisia submits there is no pleading in regard to other cases or hearings. That is not new because Chetwynd J also did mention in his ruling in CC 12 of 2012, paragraph 5 said:

"There have been several hearings before me in this case and none of them have any of the other Claimants' reneged on the pleadings."

The above quote refers to the same land and the same factions.

11. What may now appears to be the trend is a rush to the Court as a saving grace and shield. Members of the two factions respond to any negativity or irregularity by filing a claim in Court without second thought. In the same case, Chetwynd J said on page 3 paragraph 1,

"It is all part of and parcel of the headlong rush into litigation, the parties seem hell bent or without so much as a pause to consider what has already being decided".

12. I would not make any mistake as to who else would be interested in Nono/Choe customary land. It must be from the two factions. Names of parties may change but represent either of the two tribes, Nono and Choe.

13. From the date of filing implicates the age of this file. Compared to others, this case is older in time and my view, that all other cases should be depended on it and not it depend on others.

14. The underlying truth is that all the other cases culminating Nono/Choe customary land grounded on the right of ownership to the land. In all cases there are references to Marovo Council of Chiefs (MCC) determination; the only tribunal so far had determined the question of ownership. In this particular case, one of and the major substances of the claim is trespass and damages for conversion of trees. Any civil litigation touches on customary land in particular where trespass is alleged, ownership of the land as a prerequisite has to have a final ascertainment. In this case, the MCC has determined the ownership. By evidence there has been a case refer to Roviana Local Court by the Choe tribe on 24 April 2012. An attempt to hear the case was arranged but due to lack of funds the proceedings were not ensued or vacated.

15. The obstacle noted which question the existence and validity of the unaccepted settlement of 13th September 2010, is grounded in CC 199 of 2013. On CC 238 of 2013, questioned the process of referral. Can one say although those two cases are younger in time be heard first and then this one later. In my respectable view, the two cases seem to contain a preliminary issue, which have to be dealt with before engaged in the process premises on the issue of landownership.

16. It would perhaps be a better course if any application to Strike Out be filed and heard immediately after the Marovo Chiefs determination. That was a substantial change of circumstances. Indeed, there was a period of about two years delay before the reference case was referred to the Local Court. Now the application has to stand against CC 199 of 2013 and CC 238 of 2013.

17. Definitely the issue has never shifted to certain extent, but rather circulated around the same land with the same two respective tribes. The issue of land ownership remains a 'live issue' and if it cannot be sorted then numerous litigations which either carry the same names of litigants or other members of the tribe is expected. If it could be permitted without any legal implications, for the Local Court to hear the referral, whatever outcome may be, should set a platform to proceed further up the judicial process. Only then, the strings of cases and litigation be minimal without accumulating fairy tale history.

18. With that, I must refuse to grant orders for Striking Out the Claim or the Case.

Variation of Previous Interim Orders

19. There is in existence Interim Injunction Orders which were varied by this Court on 14th December, 2007. This application is purposely to varying or setting aside those Orders. The reasons are that the Marovo Council of Chiefs had made determination that there was 'no Choe tribe and no Choe land', and that determination is yet to be appealed against. Secondly, that the registered land (Choe land) which allegedly being the subject land trespassed on, is no longer exist. The registration was de-registered by Order of this Court on 15th March, 2010. Therefore, it falls back to the position that Defendants 1 – 3 are not trespassers. Thirdly, the Orders were obtained by fraud because the process employed to acquire registration was done by fraud. Hence, R.17-55 (b) vested on Court the power to set aside those orders. And that should include Orders restraining funds which should now be terminated and released.

20. The application, per se, is a legal approach in respond to the changing circumstances, notably tenable to do. However, it has to be noted that a reference case was filed on 24th April, 2012. Fifty Dollars was paid at the Magistrates Office in Gizo as per GTR NO. 1568177 with a statement of case dated 16th April, 2012. Clearly, there is a land dispute case regarding Choe customary land pending in the Local Court. CC 238 of 2013 is a recent case filed by a member of the Nono Tribe questioning the process of referral. That case has yet to be heard.

21. In any event, it cannot be denied a 'Referral Case' had been filed and currently pending before the Local Court. In that circumstance, would it be proper to 'set aside' or 'vary' the Interim Injunction Orders dated 14th December, 2007. This issue has not been succinctly argued at submissions but superficially done so, especially Counsel for the Claimants.

22. I have taken course and effect to look beyond all possible grounds for issuant, varying or setting-aside of injunctive orders. In doing so, concluded that the purpose for any such interlocutory orders is to preserve the status quo (interim preservation of property) pending determination of triable issues before the Court. Notably, there are two occasions where such Orders be granted. In this jurisdiction, Injunctive Orders and subsequent Variations are common in logging operations. In both occasions, the rationale is equated, to uphold the status quo, a preservation measure from allowing dilapidating environs whilst the substantiative issue is yet to be determined by the Court. One such issue is where the timber rights process or the issuant of a felling licence is questionable. The other occasion is where the Court acts as a catalyst to facilitate determination of ownership issues in the land tribunals.

23. In this case, the major claim is trespass, damages and conversion of trees. A Court of an appropriate jurisdiction cannot determine the issue of trespass and assessment of damages conclusively unless the issue of ownership is finalised. Evidence has revealed that the ownership issue had been referred to the Local Court for hearing and determination. Whilst that has yet to be done, in my respectable view, the status quo has to be maintained. In the famous case of Veno & Young –v- O. Jino & Others[1], His Lordship Palmer CJ stated at page 4, paragraph 3,

"In so far as the customary issues enumerated in this judgment are beyond the jurisdiction of this Court, that the proper forum for dealing with such matters is before the Chiefs and the Local Courts, this Court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a Local Court or Customary Land Appeal Court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of ownership issue in the Local Court or the Customary Land Appeal Court."

24. In another case, Bako and Others –v- Gedi and Others, the Court of Appeal ruled that a letter to the Chiefs enquiring for filing a land dispute case is sufficient ground to grant relief by way of Injunction as an aid.

25. This application could have been timely filed and be heard immediately after the Marovo Council of Chiefs made their determination, and before the Reference Case was filed with the Local Court. Now it has been hanged up by obstacles, reference case had been filed, more High Court case had been filed through latter in time, by members of the same tribes. With the reasons I state herein, I consider appropriate, though will prolong the case further, not to grant any order setting aside the original and or varying the Interim Injunctive Orders dated 4th December, 2007.

Application for Summary Judgment

26. Application for Summary Judgment by a Defendant is guided by Rule 9.58 of the Rules. The application is based on two grounds. One, that the Marovo Council of Chiefs had determined that there is no Choe tribe and no Choe land. Technically upon perception, it becomes a ground why there is no real prospect of the claimants' case succeeding.

27. Prospectively, the MCC determination is not final, a reference case had been filed with the Local Court on 24th April, 2012. This is a case where the prospect of success cannot be assessed whilst the issue of landownership is pending hearing in the Local Court. The heart of this case lies with the claim of trespass and damages and that cannot be determined early as one would like, but has to wait for proper land tribunal to make its determination. Perhaps proper timing would be after the Local Court determination, if the Court still upholds the MCC decision.

28. The second ground is that the Claimants had failed to file their reasons why there is real prospect of any part of their claim succeeding. By Rule 9.62, reasons given has to be done by way of Sworn Statement and served seven (7) days before the hearing date. I have no difficulty in pointing out there is indeed no sworn statement filed and served, opposing the application for Summary Judgment. However, Rule 9.64 vests on Court discretionary power to give Summary Judgment. Rule 9.64 (c) states "the Court may give Summary Judgment for the applicant after being satisfied on the argument advance by the applicant".

29. In this case, I am not satisfied, one, on the reasons I specifically pointed out in paragraph 27 above. Secondly, that Rule 1.16 states that "failure to comply with the Rules is an irregularity and does not make this proceeding a nullity". Since this is an interlocutory application which appears perhaps once and for all, there is no point in making another order, except to say Counsel ought to be vigilant in executing his client's case. Non-compliance with the Rules is quite a humiliating risk where every practising Counsel ought to avoid and place interest of their clients a priority.

30. Having said all I could, I can be able to conclude by refusing to grant order for Summary Judgment.

Orders:

1. Application to Strike Out refused.
   
2. Application to Vary and or Set aside previous Interim Orders refused.
   
3. Application for Summary Judgment refused.
   
4. Cost payable to the Claimants.
   
5. Court cost for two applications be paid immediately by 1st and 2nd Defendant.
   

THE COURT

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^[1] HCSI CC No. 152 of 2003 (9^th January 2004)